Archive | Criminal Law

Law professor Josh Blackman and Yale student Shelby Baird have posted an interesting paper entitled “The Shooting Cycle,” on the reaction of public opinion to mass shooting incidents, like the tragic events in Newtown and the Washington Navy Yard in 2012 and 2013. Political ignorance plays an important role in their explanation for why such events result in temporary spikes in public support for gun control, followed by reversion to the mean. Here is Josh’s more detailed description of the findings:

The pattern is a painfully familiar one. News breaks that an unknown number of victims were killed by gunfire at a school, store, or other public place. The perpetrator wantonly takes the lives of innocent people. After the police arrive, the perpetrator is soon captured or killed, often by suicide. Sadness for the losses soon gives way to an emotional fervor for change. Different proposals for gun control are advanced—some ideas that were proposed earlier, but never obtained popular support, and other ideas that are developed in response to the recent tragedy. Politicians and advocates are optimistic for reform. However, as time elapses, support for these laws fades…..

This contribution to a symposium issue of the Connecticut Law Review on the Second Amendment peels back much of the rhetoric surrounding gun violence, and, distant from the passions, explores how the government and people react to these tragedies. This article offers a sober look at what we label the shooting cycle, and assesses how people and governments respond to mass killings….

We address this important issue in five parts. In Part I, we define the term “shooting,” and quantify how frequent they occur. Shootings, labeled “mass murders” by the FBI, are killings where the “four or more [murders] occur[] during the same incident, with no distinctive time period between the

The record — as corroborated by a video of the events — is that (1) Mobley found himself in the middle of a violent, unprovoked attack on a companion who was standing right next to him, by one of two men who earlier had engaged in an altercation to which he was a witness; (2) after the initial violent attack on Mobley’s friend, the attacker immediately turned his attention to Mobley; (3) less than four seconds after that, the first attacker was joined by the second man involved in the altercation inside the restaurant; and (4) when the second man reached under his shirt after rushing up to join his companion who had not abandoned the field, Mobley believed the second man was reaching for a weapon to continue the attack. With these facts at hand, and with Mobley’s knowledge of these two assailants, the issue for determination was not whether Mobley knew a weapon was possible or whether he actually saw one, but whether a reasonably prudent person in those same circumstances and with the same knowledge would have used the force Mobley used….

It may have been more prudent for Mobley and Chico to skitter to their cars and hightail it out of there when they had the chance; however, as even the State concedes and the court below recognized, Mobley and Chico had every right to be where they were, doing what they were doing and they did nothing to precipitate this violent attack. The only relevant inquiry was whether, given the totality of the circumstances leading up to the attack, the appearance of danger was so real that a

In October of 2007, Elizabeth P. Coast, then seventeen, reported that when she was ten years old a neighborhood boy named “Jon” sexually assaulted her while the two were alone in her grandmother’s backyard…. Coast identified Montgomery in a photo lineup using his Hampton High School yearbook photo….

On June 23, 2008, … [the trial court] tried and convicted Montgomery in a one-day bench trial for the assault of Coast. Coast testified under oath that Montgomery had sexually assaulted her in 2000. She described the alleged assault in graphic detail. She said that she did not tell anyone what happened at the time of the assault because she thought her parents “would get mad” and she was “really embarrassed.” She explained that she decided to come forward seven years later because she thought she saw Montgomery at Wal-Mart….

Besides Coast, no other witnesses to the incident testified at Montgomery’s trial. Neither was any corroborating physical evidence that an assault occurred ever presented. The trial judge categorized this case as a “word against word situation.” In reaching his verdict, the trial judge concluded that Coast was more credible then Montgomery because she had “no motive whatsoever” to lie. The trial court then found Montgomery guilty of forcible sodomy, aggravated sexual battery, and object sexual penetration. On April 10, 2009, the trial judge sentenced Montgomery to 45 years in prison, with 37 years and 6 months suspended….

On November 1, 2012, Coast voluntarily made a videotaped statement at the Hampton Police Department. After consulting with counsel

Today President Obama commuted the sentences of eight people all serving long crack sentences that might well be illegal if given today. Charlie Savage reports: “It was the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies.”

This is exactly the kind of thing I had in mind in my NYT Debate column about retroactivity a few months ago. Of course, eight is not very many. Better if it were eighty, or eight hundred, or eight thousand. Mark Knoller tweeted that this “brings Pres Obama’s number of pardons to 52, fewer than any US president since Garfield, who granted none.”

Also: Now that the full list of names is out, I see that one pardon recipient is Mr. Ezell Gilbert. Mr. Gilbert, Savage notes, will “be released immediately because he was recently out of prison for a time, without problems, during an appeal.” And what an appeal it was. Two years ago, Gilbert’s case divided the Eleventh Circuit in a series of opinions. First, an Eleventh Circuit panel concluded that Gilbert’s sentence could be corrected through habeas even though it had long been final, prompting Doug Berman to write that the court had “given[n] the ‘Great Writ’ some notable life.” The panel also ordered Gilbert to be immediately released.

The Eleventh Circuit met en banc, and in May 2011 it reversed the panel 8-3 and ordered Gilbert back into prison. Gilbert unsuccessfully petitioned the Supreme Court for cert. If only the President had reached this decision two and a half years ago. At least he’ll be out for Christmas.

UPDATE: A reader points out that these eight offenders have actually received what is formally […]

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v.United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as […]

Eric Crinnian, a lawyer, heard a loud banging at his door Monday night, he was instantly alarmed since a neighbor’s house was robbed a few weeks ago, so he grabbed a crow-bar.

Crinnian said three police officers were outside his house.
“I open the door a little bit wider and he sees that I have something in my hand, so he pulls his gun, tells me to put down whatever I’ve got and then come out with my hands up, so I do,” Crinnian said.
They wanted to know where two guys were, and Crinnian later found out police believed they violated parole.

“I said, ‘I have no idea who you’re talking about I’ve never heard of these people before,’” he said.

To prove it, he said police asked to search his house, Crinnian refused multiple times. He said they needed a warrant.

Then he said one police officer started threatening him saying, “If we have to get a warrant, we’re going to come back when you’re not expecting it, we’re going to park in front of your house, where all your neighbors can see, we’re gonna bust in your door with a battering ram, we’re gonna shoot and kill your dogs, who are my family, and then we’re going to ransack your house looking for these people.”

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

The Johnson article is a short version of his forthcoming (Jan. 14, 2014) book Negroes and the Gun: The Black Tradition of Arms by Nicholas Johnson (Jan 14, 2014). I very highly recommend the book. It goes far beyond the Connecticut article. The subject of race control and gun control has been a subject of increasing scholarly attention ever since Robert J. Cottrol and Raymond T. Diamond’s 1991 Georgetown LJ article, The Second Amendment: Toward an Afro-Americanist Reconsideration. Having followed the subject carefully for the past two decades, I am amazed by how much original research that Johnson brought to the book, and by the rigorous analysis he provided for the most difficult questions.

In the Connecticut symposium, response essays are offered from leading “pro-gun” scholars (Cottrol & Diamond, Don Kates & Alice Marie Beard) and from leading “anti-gun” scholars (Michael DeLeeuw, David Kairys, Andrew McClurg [my co-author on another gun textbook], and William Merkel).

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.

Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate […]

If a satirist had set out to write a scathing parody of the campus crusade against rape, he could not have come up with anything more bizarre, or more ridiculous, than the real-life comedy-drama that unfolded last month at Ohio University in Athens, Ohio.

The scandal started, like many scandals do these days, in the social media. On Saturday, October 12, amidst the school’s Homecoming Weekend festivities, photos and a video of two young people engaged in a public sex act near the campus–the man on his knees performing oral sex on the woman while she leaned against a plate-glass window, half-sitting on its ledge–showed up online and promptly spread on Twitter….

Read the whole piece, plus, if you’d like, the linked-to news story on the grand jury’s refusal to indict. (For the sake of completeness, I should note that the story also mentions that the video footage showed digital penetration as well as oral sex, though I don’t think that affects the analysis.) […]

Last year here in San Diego, we had a funny judicial election for a local Superior Court judgeship. The two candidates were Gary Kreep and Garland Peed, and at the time their names caught my eye not only for the obvious juvenile reasons, but because Peed listed his career as a prosecutor, and Kreep described himself as a “constitutional law attorney.” It turned out that Kreep was a high-profile “birther” who had questioned Barack Obama’s eligibility to the office of President of the United States. It also turned out that Kreep won, by a very narrow margin.

There was a lot of concern from the left about what Kreep would do on the bench — see for example this letter by the San Diego NAACP. And since Kreep has been on the bench he has indeed been controversial — but not for the reason some people were expecting. It seems that he upset the local prosecutors office by ruling against them too often. The San Diego Union Tribune reports:

San Diego Judge Gary Kreep, a conservative legal activist who led a failed fight to challenge President Obama’s citizenship, has been exiled to traffic court after several Superior Court rulings favoring defendants’ constitutional rights.

Kreep, 63, was reassigned on Sept. 9 from the downtown San Diego courthouse to a Kearny Mesa facility that handles traffic offenses and small claims.

The move came after prosecutors from the City Attorney’s Office began to boycott his courtroom over his legal approach.

For instance, Kreep often declined to take away a defendant’s 4th Amendment rights against search and seizure — something prosecutors can legally request at various points during the criminal process.

…

Apparently Kreep earned the ire only of prosecutors. The Public Defender’s office, which handles the majority of the cases in Kreep’s

My former Stanford colleague Beth Colgan now has a piece in the UCLA Law Review Online, making the opposite case. She argues that Alleyne v. United States — a decision from last term about mandatory minimums and jury trials — has surprising implications for retroactivity analysis. I’m not sure I agree, but Colgan’s article is the best thing I’ve read on that side of the debate.

By the way, you may have noticed that online law reviews are publishing a lot these days, and they seem to be where a lot of the shorter (sometimes very short) scholarship is going — a fact that may be relevant to the debate about article length below. For more thoughts on the changing role of online law reviews, see this post by Howard Wasserman. […]

Generally speaking, private employers may terminate their relationship with employees for any reason, or no reason at all — that’s the “employment at will” principle. There are two main legal constraints on this. The first is contractual, for instance some sort of union contract or tenure contract. The second is statutory, such as bans on discrimination based on race, sex, religion and the like (including, in some states, sexual orientation and marital status), or less well-known statutes banning discrimination based on an employee’s vote, and in about half the states banning employer retaliation for certain kinds of employee speech and political activity. But if no such contract or statute is applicable, even conduct that is constitutionally protected against governmental retaliation — such as speech, political activity, off-the-job sexual activity, marital decisions, self-defense, and the like — are not protected against private employer retaliation.

There is, however, a third constraint, created by judges in many states: the tort of “wrongful termination in violation of public policy.” The Utah formulation of this tort, which is similar to that in many other states, bars employer retaliation against an employee for:

(i)[r]efusing to commit an illegal or wrongful act, such as refusing to violate the antitrust laws;
(ii) performing a public obligation, such as accepting jury duty;
(iii) exercising a legal right or privilege, such as filing a workers’ compensation claim; or
(iv) reporting to a public authority criminal activity of the employer.

The complicated category is category (iii). There are lots of legal rights and privileges that don’t trigger that category — people have the right to speak, but, absent a statute, courts generally don’t bar employers from firing employees based on their speech. (There’s one exception, Novosel v. Nationwide Ins. Co. (3d Cir. 1983), but it hasn’t been followed.) Likewise, […]

The International Criminal Court today for the first time ruled a case inadmissible, and left the matter to domestic justice. Doubtless the anti-activist ruling has nothing to do with the confab of African countries today, called together by Kenya to discuss quitting the Court’s jurisdiction en masse in protest of the Court doing its job and hearing cases involving African countries that had had accepted its jurisdiction. Such a move, which I don’t think will happen, would be devastating for the court.

The case involved charges against Al-Senussi, Qaddafi’s former head of military intelligence and doubtless very terrible guy. He has been in Libyan custody for over 18 months, with an investigation slowly proceeding, but no clear end in sight. The ICC charged Senussi after the Security Council referred the Libyan situation to them during the civil war that lead to Qaddafi’s downfall. It is particularly notable that the Court dismissed the case here when it arose from a S.C. referral, which are rare and generally correspond to an extra level of seriousness.

The Pre-Trial Chamber (PTC) of the Court found the case satisfied the complementary principle – that is, the ICC can only act when the home state is “unable or unwilling” to prosecute. This principle is essential for international criminal justice, but has gotten little elaboration by the Court in its 11 years of existence.

Libya is certainly “willing” – there is no concern here of a sham prosecution to shield the former regime baddie from justice. It might not be “willing” to overcome the various turf, bureaucratic and inertia problems that it might face in staging a trial but that is not what willingness means, the PTC suggests. The bigger question is “able.”

India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) even when no death results. Thus India’s new law goes even beyond what was recently forbidden by the U.S. Supreme Court in Kennedy v. Louisiana.

The problem with determining constitutional law in reference to a “international opinion” and practice is that it keeps changing, and not in a constant direction. In Roper v. Louisiana, the Court famously found the practices of other countries relevant to the constitutionality of the death penalty. A few years later, in Kennedy v. Louisiana, the Court held the death penalty could not be constitutionally applied to child rapists (having given up execution for adult rape a while back).

In Roper, the Court found the countries that had executed juveniles in recent decades to be a motley mix of African and Islamic-law countries. But India is the world’s largest democracy, with Anglo-American legal traditions.

The more interesting point here is not about death penalty jurisprudence per se, but about the underlying assumptions about the reality and inevitability of human moral progress that underpins much of constitutional law’s “evolving consensus” discourse. Unlike in biology, norms and morales can evolve back.

[Of course, the death sentence is far from the end of the line for the Delhi rapists. There will be appeals, pardon requests, and the possibility of a last-minute stay, like the Indian Supreme Court gave this week to a father who beheaded his five daughters in an argument with his two wives.] […]